Consumer Protection Law
Consumer Protection Law Questions? Ask a Lawyer Now.
Did the consumer receive a cash refund for the item? What happened when it was returned?
Was the check insufficient funds, closed account or a deliberate stop payment?
What was the amount of the check?
The check was returned for NSF and the device was returned to the seller because of his continuous threats. I showed up with cash at the business and the seller refused to meet with me so I left the device at the place of business and cancelled the one post dated check with the bank. One check hit the bank and was returned and the second check was placed as stop payment. $1,388.86 x2 checks.
The check was NSF but the banker verified the funds did not transfer properly to protect me and was willing to issue a certified check to correct the matter. Instead I took cash to the place of business to fix the matter and discuss the issues I had with the device but the sale rep. refused to meet with me so I left the device with his assistant.
Hello again B --
I apologize for the delay here. I had to go offline for a little while and just returned. In georgia, the statute governing returned checks is OCGA 16-9-20 and the penalties can be very severe for a returned check for insufficient funds or a closed account. If the check was for more than $500 a person can be charged with a felony check fraud count in criminal court and the penalty is an additional fine of $500 and up to 2 years imprisonment. Unfortunately, the returned check law does not permit a consumer who had issues/problems with the product they purchased to stop payment or withhold payment on the check written to purchase the product. Because the difficulties that you had with the product are a civil matter the appropriate way to handle this matter under the law was to pay the checks and then take the matter to small claims court to let a civil judge determine if you were due a refund if the merchant failed to honor the product. While I do not agree with the methods and rudeness of the seller under these circumstances, he has the upper hand here until you pay for the check and then turn the tables on him and bring the matter into small claims court for a faulty or defective product. I truly did not want to be the one to tell you this but the merchant is correct in this matter. I know it does not seem right or feel right to you but for several years before I went to law school I handled collections on returned checks for a local merchant and it was difficult to explain to people that even if you have problems with the product you cannot fail to honor a check that you wrote because there are criminal penalties that have nothing to do with your civil remedies and the police and the criminal courts are not concerned with the problems you had with the product or the merchant -- because the criminal check fraud statute simply states that whomever passes a check that is returned by their bank for NSF or no account or closed account can be found guilty of check fraud if the check is not paid within a reasonable period of time after the check has been dishonored by the bank. The merchant is supposed to send you a letter informing you that you have 10 days to pay the check and if you do not then he can take the matter to the police and have it signed up in the local Magistrate Court for prosecution.
My suggestion here is to send him another certified check for the outstanding funds and in the same letter state that in the event that he does not furnish a non defective product to you within 10 days of the date of your letter or issue you a full refund, then you will take the matter to small claims court for unfair and deceptive business practices and consumer fraud and you will certainly share your experiences on Facebook and any other internet forum that rates consumer electronics sales stores or departments so that others will know of the crass and shoddy treatment of customers in the store. If he fails to contact you to settle the matter, then your next step is to go to the Magistrate Court yourself and go to the civil clerk's office to request the appropriate form to sign a consumer matter up in the small claims section of the Magistrate Court -- you can sue up to $5,000 by completing a form and handing it to the clerk there (they will set a hearing date). Then, when the matter is heard in the Magistrate court you will most likely get some satisfaction there -- either some or all of your money returned to you or a new product given to you in order to settle the matter.
I wish I could tell you something different here but as I said -- they are two separate legal issues -- one criminal and one civil -- and they are handled quite differently in the law and by the police and the courts. I would appreciate it if you could please keep in mind that I am obligated to tell you the legal truth of the matter and it would be unprofessional of me to tell you anything less than what can happen under the circumstances you describe above and while I understand that you may be disappointed that you are not legally permitted to withhold payment on a check like this for poor service or products, I hope that you keep in mind that I cannot tell you anything but the truth when you are selecting a rating below. Please note that I am paid NOTHING unless you press the 3rd, 4th or 5th smile face underneath this ANSWER box and if I could have found an answer that would not have disappointed you, I would have certainly provided it to you.
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So what if the product is still with the seller? Does he keep it if I send the certified check and the letter of demand until we go to civil court? Does the magistrate not consider the item was returned due to the inability to pay the debt or in this case a bad check?
Hello again B-
His obligation right now is to return the original product that you purchased back to you unless you can make an argument that you returned the product within his posted return policies at the store ( a merchant is permitted to have any return policy that they choose so long as it is clear to the consumer either posted or on a receipt that you were given). However, even if you can make that argument, because the check issue is a separate potentially criminal matter, you still have to pay for the checks first and then pursue either the return of the original product to you, a new product or a refund to you in small claims court. In the letter that you write to him, I do suggest that you mention that he still has your product and you would like a refund or a replacement but if he refuses you want the original product returned to you until you sign the matter up in small claims court and the Magistrate judge will make the overall decision regarding what is owed to you.
I really wish this was easier but it is not. The little person is the one who ends up getting stomped on and the best way for you to punch back is to threaten the small claims court and if he doesn't believe you or makes light of it then you get the matter signed up in court as soon as possible and save the text messages to show the judge. While what he told you is not illegal -- he had a right to tell you what can happen if you did not take care of the checks -- the texts and their tone and the number of them will show the Magistrate small claims judge how unwilling he was to work with you to even help you to repair the product and to get it working -- and that is all you wanted in the first place.
Can I file Harrassment charges against him and if so, is that a civil or magistrate matter?
Probably not. While his messages were rude and annoying, he does have a right to ask you for payment and tell you what the consequences of not payment will be. The manner in which he did so was what caused you to be annoyed in the first place and if this ends up in small claims court because he still refuses to assist you after you pay him and write to him -- then you should use the text messages as further proof of the fact that he is a boorish moron and if he had handled the matter differently then it never would have gotten as far as it did -- the civil court will hear this evidence and it will play good into your case -- possibly assisting you in getting a return of your money for the product in the long run anyway.
Thanks again for your time,
I gave you the 5th smiley face!!!!
Best of Luck and thank you for the excellent rating and the bonus -- it really does make a difference on the night before a holiday !
Have a great 4th of July.
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